And just when you thought the EPA had picked enough fights in Colorado, along comes another big issue: Ozone.

‘Setting us up to fail’

It hasn’t received as many headlines as Gold King, the Clean Power Plan or the “Waters of the United States” rulemaking, to be sure. But the EPA’s campaign to ratchet down the federal ozone standard – and give the agency new powers over state and local governments – has nonetheless triggered a bipartisan backlash.

“This is just setting us up to fail,” State Sen. Cheri Jahn (D-Wheat Ridge) recently told the Denver Business Journal. Republicans are also angry about the EPA’s October 2015 decision to tighten the federal ozone standard from 75 parts per billion (ppb) down to 70 ppb. For example, Senate President Bill Cadman (R) says the ozone rules are part of a “federal assault on the private sector and job creation at a time when our economy can least afford it,” and Senate Majority Leader Mark Scheffel (R) has warned billions of dollars of economic activity and thousands of jobs are in jeopardy. Last year, during the debate over whether the EPA should change the standard, Gov. John Hickenlooper (D) said he was “very concerned” about tighter ozone caps and U.S. Sen. Michael Bennet (D) warned “this is the perfect example of applying the law but doing it in a way that doesn’t make sense on the ground.”

The issue has also caught the attention of editorial writers and opinion editors on the Front Range and Western Slope in recent weeks. The Denver Post warned the Denver metropolitan area faces “a difficult journey” under the new 70 ppb ozone standard, and slammed environmental groups for “trying to put the state in a regulatory straitjacket.” The problem of “background” air pollution from outside Colorado “makes compliance with ozone rules particularly difficult,” the Post editorial also noted. Later, the same newspaper published a letter from Denver University emissions expert Gary Bishop, who said it’s practically impossible for Denver to meet the 70 ppb standard. Even a report from the EPA concedes Denver will be stuck in violation of the standard until 2025 at least.

Background ozone: ‘A heavy price for other people’s pollution’

“[T]he fact remains that precursor pollutants that cause ozone may originate in California, Mexico, Canada or as far away as China,” according to the The Grand Junction Daily Sentinel editorial board, citing research from the Western States Air Resources Council. “Paying a heavy price for other people’s pollution is exactly why we hear so much grumbling about federal overreach,” the Sentinel continued. If the EPA had properly considered the background ozone issue last year, before its decision, the agency “might have been forced to leave the 75 ppb standard in place,” the newspaper concluded. So why does the EPA’s ozone rule matter so much? For starters, it’s because ozone-forming emissions come from a wide range of sources across every sector of the economy, including motor vehicles, power plants, manufacturing facilities and construction projects. Prolonged violation of the federal ozone standard triggers an enforcement process that requires state and local officials to impose new regulatory restrictions on these sources. More to the point, the EPA has veto power over these state and local changes, giving the federal government a huge amount of influence over how the new regulations are written.

“EPA gets to regulate an enormous amount of economic activity,” Ray Gifford, former chairman of the Colorado Public Utilities Commission, has warned. “In effect, EPA becomes the planning commission, the zoning commission and the state permitting agency all rolled into one.” Similarly, the Associated General Contractors of America – which represents the construction industry – says long-term violation of the ozone standard means “there is essentially a ban on the construction of new industrial or manufacturing facilities in this area, and it becomes very difficult even to expand existing facilities.” Construction unions feel the same way about the EPA’s ozone push. “We cannot continue to layer environmental regulation upon environmental regulation without considering the impact it will have on our economy and our workers,” according to the Laborers International Union of North America.

‘Our state should be praised, not punished’

Then there’s impact on transportation infrastructure. In areas that violate the ozone standard, the EPA can impose new conditions on federal highway funds, or block those funds completely, through a process called “transportation conformity.” The extra red tape will cause “longer commutes and even worse traffic” due to delayed and blocked highway funding, former state lawmaker and Jefferson County Commissioner Libby Szabo (R) has warned. In fact, the U.S. Chamber of Commerce has identified the $1.8 billion reconstruction and expansion of I-70 East in Denver as a vulnerable project. “[I]t’s completion could be at risk if the Denver metropolitan region is unable to demonstrate transportation conformity compliance with EPA’s proposed ozone standards,” according to the Chamber. Even the U.S. Conference of Mayors and the National Association of Counties – bipartisan groups that represent thousands of local governments across the country – warned the EPA against tightening the federal ozone cap to 70 ppb. The rule change may “negatively affect job creation and critical economic development projects,” hinder efforts to reduce traffic congestion, and impose “financial and administrative burdens on local governments,” the groups wrote last year, before the EPA decided to tighten the ozone standard anyway.

Colorado officials and other stakeholders are also frustrated with the EPA for ignoring the state’s commendable air quality history. In the early 1970s, Denver registered ozone readings above 200 ppb, and sometimes 300 ppb. Today, the Denver metro area’s average ozone readings are in the neighborhood of 75 and 80 ppb – a huge improvement. “In the past, there were cost-effective options to reduce emissions, and the ozone targets were reachable,” according to Gifford, the former CPUC chairman. Now we have “reached the point of diminishing returns” where further emissions reductions will be highly expensive, if not impossible, “because of high background concentrations that state and local officials have no control over,” Gifford said. “After the great progress we have made on air quality, our state should be praised, not punished,” said Jahn, the Jefferson County Democrat, last year before EPA’s tightened the ozone cap. On the day of the EPA’s decision, state environmental regulators in Colorado put on a brave face. Dr. Larry Wolk, executive director of the Colorado Department of Health and Environment, said the state was in a “good position moving forward to address ozone,” but warned meeting the new EPA standard would be “a significant challenge.” Wolk singled out the issue of background ozone, which “comes from out of state and in some cases out of the country.” He concluded: “It needs to be accounted for somehow, and requires flexibility in the planning and implementation process.”

Closed-door discussions, Bennet ‘deeply concerned’

Last month, the Hickenlooper administration sent a delegation of Colorado air quality officials to an EPA “workshop” on background in Phoenix, Ariz., where officials from the federal agency faced the music. Much of the workshop was actually closed to the public, so EPA officials and state regulators could privately debate the problems with the new ozone standard, but the testimony during the open sessions was nonetheless eye-opening. According to E&E News, an EPA official called the Intermountain West the “most problematic” region in the country for background ozone, and a scientist with the National Oceanic and Atmospheric Administration said there are no measurements “that can tell you day in and day out how much ozone is coming in [from outside the country] and impacting the U.S.” Arizona’s top air quality regulator summed up the dilemma for state regulators. “Industry is a very small portion of the sources of ozone, but at the same time, those are the ones that we can traditionally control,” the Arizona regulator said, according to Cronkite News. “So they are going to bear the hit.”

Last year, before the EPA decided to lower the standard, Bennet said he was “deeply concerned” about areas of Colorado being thrown into violation, or nonattainment, with the ozone standard based on background air pollution. “Because of the pollution that’s come in from other Western states, from across the globe, from wildfires in the West, we have significant parts of our state that would be non-attainment zones from the very beginning,” the Senate Democrat said. “That doesn’t make any sense. That’s not going to work.”

When will we see action?

The nature of the problem is clear. The EPA’s new ozone standard goes too far. It will throw large areas of the state into long-term violation of federal law. Violation will impose new restrictions on economic growth and jeopardize badly needed investments in transportation infrastructure. And because the stringent new standard approaches background ozone levels, which state regulators are powerless to control, there will be little, if any, environmental benefit in return. For months, stakeholders from across government, across the political spectrum and across the economy have stated and restated the problem. But admiring the complexity of the problem won’t solve it. It will take action to avoid the worst impacts of the EPA’s ozone plan in Colorado. It’s time to find out what elected officials and environmental regulators are actually going to do about it.

Simon Lomax is an associate energy policy analyst with the Independence Institute and a consultant who advises pro-business groups. From 2004 to 2012, he was a news reporter covering energy and environmental policy in Washington, D.C. Contact him at simon@i2i.org.